Phillips v. Pembroke Real Estate, Inc.
| Decision Date | 22 August 2006 |
| Docket Number | No. 05-1970.,05-1970. |
| Citation | 459 F.3d 128 |
| Parties | David PHILLIPS, Plaintiff, Appellant, v. PEMBROKE REAL ESTATE, INC., Defendant, Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
Andrew D. Epstein, with whom Lucy Lovrien was on brief, for appellant.
Scott P. Lewis, with whom Edwards Angell Palmer & Dodge LLP was on brief, for appellee.
Before LIPEZ, Circuit Judge, CYR and STAHL, Senior Circuit Judges.
This case raises important questions about the application of the Visual Artists Rights Act of 1990 ("VARA"), 17 U.S.C. § 106A, to "site-specific art", which is a subset of "integrated art". A work of "integrated art" is comprised of two or more physical objects that must be presented together as the artist intended for the work to retain its meaning and integrity. In a work of "site-specific art", one of the component physical objects is the location of the art. To remove a work of site-specific art from its original site is to destroy it.
David Phillips brought suit against Pembroke Real Estate, Inc. in federal district court, asserting that the removal of any or all of his work, consisting of multiple pieces of sculpture and stonework, from Eastport Park in South Boston would violate his statutory rights under VARA and the Massachusetts Art Preservation Act ("MAPA"), Mass. Gen. Laws ch. 231, § 85S. The district court ruled that VARA recognized integrated art, and that most of Phillips' sculptures and stonework in the Park constituted "one integrated `work of visual art'" — with the remaining pieces being "individual free-standing pieces of sculpture, which are not integrated into the other pieces." It also held that Phillips' integrated work of art was an example of site-specific art. But the court held that Pembroke could remove Phillips' works from the Park pursuant to VARA's so-called "public presentation" exception. See 17 U.S.C. § 106A(c)(2).
Phillips challenges that reading of the public presentation exception on appeal. Although we disagree with the district court's reasoning (we hold that VARA does not apply to site-specific art at all), we affirm the decision of the district court permitting Pembroke to remove Phillips' works from the Park.
Phillips is a nationally recognized sculptor who works primarily with stone and bronze forms that he integrates into local environs. In many of his sculptures, the design of the stones is incorporated into the landscape — such as a private project in Ogunquit, Maine, where a band of rock was extended into a bronze tributary in the ground, which, in sunlight, glistened like a nearby stream. In some of his other works, Phillips has merged metals or polished stone with aged, naturally-shaped boulders.
Phillips' commissioned work from the past twenty years can be found at private companies and universities and in public spaces across the United States — in places such as Massachusetts, Washington, D.C., New York, and Utah — and internationally — in places such as Tokyo, Japan and Colombia. His work has been profiled in both Japanese and American art magazines, and featured in galleries and museums in, among many places, New York City and Maine. His 1993 promotional brochure details his artistic themes:
It is Phillips' inherent reverence for natural beauty in this ecologically ravaged world that influences all his decisions, particularly when he recontextualizes a stone by replacing part of its form with a man-made surrogate or when he gracefully applies typical landscaping and architectural materials along with natural stone and traditional art materials into new equations of form and function.
Eastport Park (the "Park"), which was completed in its current form in the spring of 2000, is located across from Boston Harbor in the South Boston Waterfront District. The Park is roughly rectangular in shape. Its borders are formed by the World Trade Center East Office building to the west, D Street to the east, Seaport Boulevard to the north, and New Congress Street to the south. The Park is a public sculpture park with a nautical theme.
In addition to Phillips, three other artists also crafted art located in the Park. Japanese sculptor Susumu Shingu created tall kinetic sculptures, Judy McKie contributed bronze, fish-shaped benches, and landscape architect Craig Halvorson designed a pergola (a shady resting place, made of rustic work or latticework on which plants, such as climbing shrubs or vines, are grown). The Park also contains paths that are inlaid with granite paving stones, large granite boulders, and flora meant to evoke an aquatic environment.
Defendant Pembroke Real Estate, Inc. ("Pembroke"), a Fidelity Investments company, leases the land on which the Park is built from the Massachusetts Port Authority ("Massport"). Massport and the Boston Redevelopment Authority must approve any changes to the design of the Park. The Park is required to be open to the public, free of charge, twenty-four hours a day.
In 1999, Pembroke commissioned Phillips to work on the Park in conjunction with the development of the World Trade Center East office building that forms the Park's western border. Phillips worked closely with Halvorson on the design of the Park. In fact, he had an oral agreement with Halvorson to act as the artist who worked with the landscape specialists. As part of his work with Halvorson, Phillips aided in the design of a series of repeated spirals that run along the axis of the Park from the northeast to the southwest corner.
To establish the terms of the commission, Phillips and Pembroke executed two contracts in August 1999. Under the "Eastport Park Artwork Agreement", Phillips created approximately twenty-seven sculptures for the Park, comprised of fifteen abstract bronze and granite pieces and twelve realistic bronze sculptures of various aquatic creatures, including frogs, crabs, and shrimp. Under the "Eastport Park Stonework Agreement", Phillips was responsible for the design and installation of stone walls, granite stones inlaid into the Park's walkways, and other landscape design elements. Most of Phillips' work in the Park is organized along the diagonal axis running from the northeast to the southwest corner, at the center of which is his large spherical sculpture entitled "Chords", the centerpiece of the Park, which Phillips personally carved from granite.
Phillips designed a bronze medallion with Zodiac signs, which crowns an S-shaped circular granite path, also of Phillips' design; outlying sculptures off of the main axis (many bronze crabs, frogs, and shrimp and a large seashell); and the curve motifs. He worked with a stone mason to choose and place the rough lichen-covered, Maine-quarried stone, and he selected the large granite stones that he used as part of his sculptures to mirror the large granite stones along Boston Harbor. Phillips' work in the Park is unified by a theme of spiral and circular forms.
In 2001, Pembroke decided to alter the Park. It retained Elizabeth Banks, a British landscape artist, to conduct the redesign. Konstantine Krekis, a member of the original design team, also contributed to the redesign. Believing that the Park's original design had conceptual problems, Pembroke wanted to simplify walkways and include more plants for better shade. Pembroke also wanted to remove much of the original stone, which had caused maintenance problems.
Banks' redesign plan called for the removal and relocation of Phillips' sculptures. Phillips protested. In January 2003, Pembroke agreed to retain Phillips' rough stone walls and all but one of his sculptures. The new redesign plan would also relocate some of the granite paving and change several walkways and finished granite objects. Objecting to this revised plan, Phillips filed suit in federal district court, seeking injunctive relief under VARA and MAPA.
On August 21, 2003, following a nonevidentiary hearing, the district court issued a temporary restraining order enjoining Pembroke from altering the Park. Subsequently, Pembroke declared its return to the original redesign plan, which would remove nearly all of Phillips' work from the Park. After a two-day evidentiary hearing, the district court issued a memorandum and order in which it found that Phillips had established the likelihood of showing: (1) that most, but not all, of his work in the Park constituted "one `integrated work of visual art,'" see Phillips v. Pembroke Real Estate, Inc., 288 F.Supp.2d 89, 98 (D.Mass.2003) (hereinafter "Phillips I"); (2) "an artist has no right to the placement or public presentation of his sculpture under the exception in § 106A(c)(2)," VARA's public presentation exception (a finding that applied to Phillips' work as both integrated art and site-specific art), id. at 100; and (3) that because "the environment of Phillips' integrated sculpture along the axis of the Park is a critical element of those works, [] changing the location of the sculpture constitutes an [impermissible] alteration under" MAPA, id. at 102. Therefore, according to the district court, Pembroke could move Phillips' work from the Park consistent with VARA, so long as Pembroke did not "alter, modify or destroy the `works of visual art' as [the court] [had] defined them." Id. at 100. In other words, consistent with VARA, Phillips' free-standing works could be moved; and the multi-element, integrated work of art along the northeast-southwest axis could be disassembled and moved piecemeal, so long as individual pieces comprising this integrated work of art were not altered modified, or destroyed. However, under the broader protections of MAPA for site-specific art, the court granted a preliminary injunction preventing Pembroke from altering the Park.
Both parties filed interlocutory...
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